Years ago, as a law student (!), I published a piece in the Election Law Journal on the Compact Clause and the National Popular Vote Interstate Compact. I wrote a follow-up there, too. In these pieces, I argued that the National Popular Vote likely required congressional consent. Under the Compact Clause of the Constitution, all interstate compacts require congressional consent. But the Court’s jurisprudence seemed to narrow the band of compacts that require fairly significantly, to those that shift political power as to the federal government or to other states (and even the “other states” part often dropped out of some of the Court’s language). But I said that even under this view, the Compact probably needed congressional consent. The proponents of NPV seem to have come around: “Nonetheless, National Popular Vote is working to obtain support for the compact in Congress.” If the Compact gets to 270 electoral votes’ worth of states, that is. (It’s at 195, although it’s made progress in Nevada and Minnesota this week.)
Recent Supreme Court cases seem to lean into views of the Compact Clause that would require congressional consent. In 2018 in Texas v. New Mexico, for instance, Justice Gorsuch’s opinion for a unanimous court pointed out, “Congress’s approval serves to ‘prevent any compact or agreement between any two States, which might affect injuriously the interests of the others.’ Florida v. Georgia, 17 How. 478, 494 (1855).” That is, he opened with the requirement of approval for compacts that could affect the interests of other states, not just the more recent emphasize on those contracts that could alter the power against the federal government. (The Court went to an 1855 case for that proposition, too.)
And today, Justice Kavanaugh’s unanimous opinion in New York v. New Jersey opens, “Under Article I, §10, of the Constitution, each State possesses the sovereign authority to enter into a compact with another State, subject to Congress’s approval.” There is no caveat about which kinds of compacts require approval or not–all do.
Now, it’s easy to say that this dicta in these cases would not bind a future Court that wanted to distinguish the language, and it’s true. But I do think the textualist approach that all interstate compacts, regardless of type, require congressional consent to be a very popular view with a majority of the Court in the near future. And some of the language from its recent cases suggests a move in that direction.
One more point to consider. The Court’s opinion in in New York summarizes the issue at hand:
Because the Compact’s text does not address whether a State may unilaterally withdraw, we look to background principles of law that would have informed the parties’ understanding when they entered the Compact. This Court has long explained that interstate compacts “are construed as contracts under the principles of contract law.” To that end, the Court has looked to “background principles of contract law” to interpret compacts that are silent on a particular issue.
This is an unremarkable proposition, as many of the Court’s “original jurisdiction” cases, involving disputes arising between two or more states, often turn on judge-developed law like this. But it’s a reminder about the stakes if disputes arise over a compact.
If disputes arise over the tabulation of votes, whether parties have met the deadlines in the compact, which slates qualify (e.g., whether the “Stein-Hawkins” ticket in Minnesota in 2016 should be tabulated with “Stein-Baraka” tickets in the rest of the United States), how to approach non-compacting states’ tallies that may be not released consistent with the terms of the compact, or any other reason… the Supreme Court would step in to resolve disputes. It would be shades of Texas v. Pennsylvania from 2020, except these states assuredly would have standing to challenge issues. Maybe that’s what we want in exchange for a national popular vote. But cases like New York are a reminder of the gap-filling complexity that can arise in any interstate compact.